Justice Watch: The Alliance for Justice Blog

September 2010

It’s official, Congress has left for recess without confirming a single judicial nominee before breaking for the election. This comes at a time when many (including Attorney General Holder) are decrying the current vacancy crisis in our courts, and when confirmation rates are already at an all-time low. In a statement earlier today, AFJ President Nan Aron expressed disappointment with the Senate:

“The Senate’s failure to move forward without confirming any judicialappointments before the election recess is extraordinarily disappointing andreflects an astonishing lack of urgency about the well-documented judicialemergencies in our courts.”

Last week, we launched a campaign asking many of you to contact your Senators to urge for votes on the 23 judicial nominees currently awaiting final confirmation. We thank you for your efforts, and hope that you will be ready to renew the fight when Congress returns in November. We need to maintain the sense of urgency in the Senate and must not let our justice system fall prey to these political games. Keep the pressure up on your own Senators over the break, whether at town hall meetings, campaign events, or fundraisers, make it clear that the judiciary is a priority.

On Thursday, the Senate Judiciary Committee sent seven more of President Obama’s judicial nominees to the full Senate for a final vote. They are joining 16 others currently stuck in procedural quicksand, blocked from confirmation by an intractable and shameless Republican minority.

The clock is ticking, though, on breaking the logjam and getting a vote on any of them before the Senate heads for the exits to go home and campaign. Sadly, it’s our badly overburdened judicial system that’s getting trampled as Congress rushes out the door.

There has always been a political aspect to the nomination of judges, especially at the appellate level. It’s a natural consequence of a process that requires Senate confirmation. But today we are facing unprecedented obstruction from Republicans that crosses the boundary from the acceptably political to an outright assault on long-standing traditions and, more importantly, on the functioning of the federal judiciary itself.

The evidence for how bad things have gotten is spelled out in Alliance for Justice’s new report on judicial nominations that covers the Obama Administration’s first 20 months in office.The report shows that President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president on history. Nominees are held up with secret holds, even those from states where Republican Senators support them. Uncontroversial nominees are reported out of the Judiciary Committee unanimously or with very little opposition, but then are put into the procedural deep freeze and denied a final vote, often for months. Republicans who voted for the nominees in committee then turn around and participate in a deliberate strategy to prevent them from actually taking their seat on the bench. It’s getting hard to tell if these are judicial appointees or hostages.

Obviously, the Republicans’ desire to obstruct is not based on concerns about qualifications, or, in some cases, even ideology. It’s just naked, unabashed obstruction for obstruction’s sake. This is a new level of crass political theater that has never before been applied broadly to all judicial nominees, especially those at the district court level. Senator Sheldon Whitehouse in yesterday’s hearing talked about this trashing of long traditions of Senate behavior, reminding the committee (apparently to no avail), “that when the two home state Senators approved a nominee, when it cleared the background check, and when it cleared the committee, they got a straight up or down vote on the senate floor without procedural obstruction, period…. By erecting a blockade of procedural obstruction for district court nominees …it is a new threshold that we will cross.”

But there’s more to this than just political squabbling. There is a genuine crisis in the federal courts. Every time a judicial appointment is delayed, a courtroom remains without a judge.

There are now 49 official “judicial emergencies” in 22 states, where there simply aren’t enough judges to hear the cases that have been filed in a timely manner. Thousands of plaintiffs and defendants, many of whose lives and livelihoods depend on the outcome of their case, face long delays. If the principle that “justice delayed is justice denied” is true, then it must be said that Republicans are contributing to the undermining of American justice itself. They may think they’re punishing President Obama with their shenanigans, but the collateral damage extends to the American people who are entitled to their day in court.

With the Senate clock ticking away, 23 nominees are waiting for a vote and 23 courts are waiting for a judge.

Perhaps before Senators go home to ask voters to re-elect them, they should do what they were elected to do in the first place and perform their constitutional duty of fully staffing the federal courts.

Over the past few years, the Supreme Court has fundamentally and radically altered the standards by which litigants’ claims are reviewed in federal court. In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court created new barriers that keep victims of unlawful conduct from seeking redress in our courts, and immunize lawbreakers from appropriate sanctions. These cases place an unnecessarily heightened burden on the plaintiff during the pleading phase to prove yet-unknown facts.

Prior to these decisions, the Court followed the standard set forth in Conley v. Gibson, 355 U.S. 41 (1957), which liberally interpreted Rule 8 of the Federal Rules of Civil Procedure. This liberal interpretation did not develop accidentally. As Justice Stevens noted in his dissent in Twombly, Rule 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief” was a direct response to the Byzantine English special pleading rules. It was crafted with an effort “not to keep litigants out of court but to keep them in.” 550 U.S. at 575 (Stevens, J., dissenting)

Unfortunately, large corporations are using the newly heightened standards to evade liability in a wide range of cases. Just yesterday, The National Law Journal reported that Toyota Corporation cited Iqbal and Twombley in an attempt to dismiss a nationwide class-action lawsuit involving faulty accelerators in Toyota vehicles:

Alliance for Justice is working to restore the pleading standards in order to protect consumers, civil rights plaintiffs, and a wide variety of other litigants who are having the courthouse door closed to them as a result of the Iqbal and Twombley decisions. We urge readers to join us online and get involved.

This week, renowned actor and activist Ed Begley, Jr., recorded the narration for our upcoming film, Crude Justice, about the legal challenges and uncertain future facing the victims of the Deep Water Horizon oil spill. Mr. Begley, whom you may know from his TV show on Green Planet, Living With Ed, or his many film and television roles, was kind enough to record this message urging concerned Americans to watch the film when it is released in October, and then get involved by hosting a screening of the film in your area, spreading the word, making a donation, or ordering the film.

We hope you enjoy his message and that you will get involved in this vitally important issue by visiting crudejustice.org.

P.S. If you have not seen the trailer for Crude Justice, you can watch it online. Then, be sure to come back in October to view the final film.